PR在澳居住两年的解释

Regulation 1.03 - 'Settled' to mean lawfully resident in Australia for a reasonable period

Good afternoon Migration Agents
The following email has been received by me from the DIAC:
Please find below response from Anne Vickers Acting Director, Family Section to a question raised by Liana Allan from Migration Alliance:

Question:
I understand that at a recent MIA CPD , the manager of Contributory Parent Visa from Perth office had stated categorically that he would refuse all applications if the sponsor has not lived in Australia for the complete two years. I also understand several applications have been refused for failing to meet this "two year" " SETTLED" requirement . Unfortunately, this issue was not raised at the CPD session to challenge this narrow interpretation of the intention of the legislation and the policy guidelines. Agents have been advised individually to go to MRT by the CO when their non-adherence to legislation and policy guidelines are raised.


The legislation and policy says:
Regulation 1.03 defines settled to mean 'lawfully resident in Australia for a reasonable period'.
'Lawfully resident' includes periods of lawful temporary residence.
Under policy, two years (as at time of visa application) is generally considered to be a 'reasonable period'. However, when assessing whether or not a person is 'settled', each case is to be considered on an individual basis with regard given to the facts of the case, such as extended periods of temporary residence.


The above is the legislation and policy guidelines. Each case to be assessed on individual basis for assessing two year settled, anything else is ultra vires. The Manager's insistence with a cast iron approach of two years is obviously flawed. Unfortunately he was not challenged on the spot. I do not think the Perth Manager is going to be persuaded by any approach or submissions as he is stubbornly insisting on his way, contrary to what the legislation and PAM says. Taking the direction form the Manager case officers will stubbornly refuse to adhere to exercising their discretion lawfully than it has got to be brought to the powers that be, and MIA has the responsibility to undertake this. One does not wish to see MRT overloaded with cases where there is an apparent gross flaw at primary decision making level.

Response:

Legislative / Policy background

Under the Regulations, the applicant for a Parent visa must be the Parent of asettled Australian citizen, permanent resident or eligible New Zealand citizen.

Regulation 1.03 defines "settled" to mean "lawfully resident in Australia for a reasonable period". "Lawfully resident" includes periods of lawful temporary residence.

A reasonable period is not defined in the legislation, but under policy, is 2 years. Guidance on assessing this for Permanent Residents and eligible New Zealand citizens is covered in the PAM under paragraph 16.1, which says a reasonable period is 2 years, but "when assessing whether or not a person is "settled", each case is to be considered on an individual basis with regard given to the facts of the case, such as extended periods of temporary residence." Further guidance is also provided in relation to assessing "settled" in relation to Australian citizens at paragraph 16.2.

Response to issue raised by MIA and Migration Alliance

A person is considered "Settled" if they have been "lawfully resident in Australia for a reasonable period", which is defined under policy as 2 years.

Policy is to be used as a guide, but cannot be applied inflexibly.

When assessing the "settled" requirement, the Department tries to adopt as consistent an approach as possible to ensure equity within the caseload. This is because the "settled" requirement is a time-of-application requirement, and as such, may influence the date on which applicants will lodge an application. That is, they will wait until they can meet this requirement before lodging. In some cases, this may mean they may lodge months or even more than a year later than they would otherwise choose.

If the 2-year policy guide is applied inconsistently, then this will allow some applicants to lodge and have their applications approved earlier than others, who may wait until the 2-year period is met. The practical effect of being able to do this is that the applicant will then receive a queue date few months earlier than another applicant. This may translate into a visa being available for grant years before the next person's. For this reason, we try to ensure equity in the management of the caseload by applying the policy as consistently as possible.

That said, each case must be assessed on its individual merits, and where there are compelling reasons to depart from policy, these need to be given serious consideration. For the purposes of consistency, only exceptional and compelling factors should lead to departure from policy. Factors that may give rise to such consideration may include, for example, cases involving minor children. Other examples may also be where the child has had previous long-term residence in Australia, but has been absent during the past 2 years or so to accompany a partner or spouse overseas for work commitments.
Yours faithfully
Liana Allan
Convenor
Follow me on twitter: @lianaallan